By Daniel Wiessner
Sept 10 (Reuters) - Janitorial services company ABM Industry Groups has sued the U.S. Department of Labor, claiming the agency's administrative proceedings for enforcing anti-discrimination requirements for federal contractors are unconstitutional.
ABM in a complaint filed in Houston federal court on Monday said the in-house proceedings violate its constitutional right to a jury trial and that administrative judges with DOL's Office of Federal Contract Compliance Programs are improperly insulated from removal by the U.S. president.
OFCCP enforces executive orders barring federal contractors from discriminating based on race, sex, and other traits and retaliating against workers who engage in protected activity.
ABM is seeking to block a Labor Department case that began in 2021 accusing the company of favoring Hispanic job applicants over white or Black applicants, which it has denied.
The lawsuit is at least the third filed since last month claiming that Labor Department proceedings violate the U.S. Constitution in light of a June U.S. Supreme Court ruling in Jarkesy v. U.S. Securities and Exchange Commission.
The justices in Jarkesy said the SEC's practice of imposing civil penalties in administrative financial fraud cases violates the guarantee of a jury trial in the Seventh Amendment of the U.S. Constitution.
Comcast and Perdue Farms filed lawsuits last month claiming that administrative whistleblower cases heard by DOL judges are unconstitutional.
The Labor Department did not immediately respond to a request for comment on Tuesday.
ABM's lawsuit alleges that OFCCP administrative judges wield executive power, and so the Constitution requires that they be held accountable to the president. Currently the judges can only be removed for cause after a federal civil service board that is not directly controlled by the White House recommends it.
In the Jarkesy case, the New Orleans-based 5th U.S. Circuit Court of Appeals in 2022 said SEC administrative judges were improperly shielded from removal. The Supreme Court did not address that issue, but affirmed the 5th Circuit's separate holding regarding civil penalties.
The case is ABM Industry Groups v. U.S. Department of Labor, U.S. District Court for the Southern District of Texas, No. 4:24-cv-03353.
For ABM: Catherine Eschbach and Michael Kenneally of Morgan Lewis & Bockius; John Fox, Alexa Morgan, and Jay Wang of Fox Wang & Morgan
For DOL: Not available
Read more:
US Supreme Court faults SEC's use of in-house judges in latest curbs on agency powers
SEC in-house judges violate right to jury trial, appeals court rules
(Reporting by Daniel Wiessner in Albany, New York)
((daniel.wiessner@thomsonreuters.com))
Comments